Ending custodial torture

Published October 31, 2022

IT has taken 75 years for Pakistan to enact legislation that comprehensively criminalises custodial torture. With the Torture and Custodial Death (Prevention and Punishment) Act, 2022, awaiting only presidential assent, Pakistan is on the verge of a milestone representing a seismic shift away from decades of indifference to torture committed by public officials.

A look at Pakistan’s fragmented domestic framework on custodial torture prior to the new law reflects a muddled situation. Articles 10A and 14 of the Constitution provide only a rudimentary legal structure enshrining the right to fair trial and the dignity of man. Article 14(2) provides the only explicit mention of torture in the Constitution but prohibits such an act when committed “for the purpose of extracting a confession” only. The Constitution may provide a sturdy enough base but, in the absence of supplementary, comprehensive legislation, there had remained lacunae.

Hitherto, there had been no definition of torture under Pakistani law. The PPC criminalises specific acts that are ancillary to torture such as assault, murder and wrongful restraint. While this meant that certain acts overlapping with some aspects of torture could be triable, there remained a disjointed framework bereft of a torture-centric lens: one that was scattered, inaccessible and prone to incompletely recognising all forms of torture. Many of these offences under the PPC were compoundable: that is, a compromise could be effected. This allowed officials to escape accountability.

Similarly, while Police Order 2002 and the KP Police Act 2017 impose penalties on personnel for inflicting custodial torture, they come with caveats. For one, neither propose to even define the notion of torture they seek to penalise. To add shade to our sombre silhouette, these provisions are inapplicable outside Punjab and KP and even then apply only to police officials, thereby providing carte blanche to other authorities.

Even when the stars did align and one found themselves in the correct province and offended by the right authority, imposing a five-year imprisonment ceiling meant that cases resulting in extreme scenarios, such as death, never saw punishment commensurate with the offence’s gravity.

Decades of apathy should come to end with the new law.

What remained was an inadequate framework that let law enforcement agencies operate with impunity. This comes as no surprise: a legal framework operating with little coherence had no way to consistently call foul play.

Meanwhile, a study on allegations of custodial torture by Justice Project Pakistan found that of the 1,876 medico-legal certificates assessed, 76 per cent showed “conclusive signs of abuse”. The physicians found that the police had beaten, suspended, crushed and even sexually abused individuals. Abuse in custody, however, was likely much more prevalent than the study suggested: the cases considered included only individuals who had been willing to come forward.

Much of the impunity stems from authorities operating with little oversight. Allegations of custodial torture are registered and investigated by law-enforcement agencies themselves. In what is an inherently biased system, police may refuse to register a complaint or obfuscate matters, leaving complainants vulnerable, with no access to justice. Cases that progress hardly go beyond departmental inquiries that result in meagre sanctions such as fines.

Beyond cases that go viral, or ones that involve an acquaintance’s forlorn retelling of their experience with the chittar, the truth is that custodial torture is accepted as a necessity for official activities. Finding some sympathy with this strained view, however, would be antithetical to the bedrock of citizens’ social contract and the inherent fundamental rights it upholds.

The Committee Against Torture, the monitoring body of the UN Convention Against Torture, observed as much and, in reminding Pakistan of its international obligations, stressed that its commitments under the Convention compelled it to make the offence of torture specifically punishable in accordance with the Convention’s definition, as “distinct from common assault or other crimes”. And after a terrifyingly nonchalant display of an Initial State Report to the committee submitted four years late and the lapsing of numerous bills, we have broken through the barrier.

That is why the Act is important. Against all the odds, we find ourselves on the brink of a new dawn. Upon presidential assent, Pakistan will, for the first time in its history, have codified legislation that defines and criminalises torture, making it a non-compoundable and non-bailable offence. The law puts in place a mechanism for witness protection and brings, in the form of the NCHR, an independent wat­c­­­­hdog to supervise investigations into torture. While the Act may not be infallible, it is imperative to recognise how far we have come and why the ball must be kept rolling.

The writer is a lawyer.

Twitter: @mir_smam

Published in Dawn, October 31st, 2022

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